“I applaud Chairman Pai’s decision to use an open and transparent process for reversing Obama’s decision to snatch political control over the internet using net neutrality as an excuse. It was an act of extraordinary bravery for Pai to start this process, and it will take an iron will for him to stand up to the Silicon Valley giants that seek to squash his plan. If they succeed, America will never be great again.

Today’s speech sets the stage for a David and Goliath battle between Pai and Google, the richest and most powerful corporation the world has ever known. Obama’s net neutrality rules were designed to support Google’s business interests, and Google will throw all its strength behind them.

It’s impossible to overstate the Google Goliath’s strength. Its power goes far beyond the massive amounts it spends on lobbying and its work on behalf of the Obama and Hillary Clinton political campaigns.

Google’s monopoly over internet advertising also gives it unseemly influence over the opinions of mainstream media. The thousands of newspapers, TV stations, and other media that rely on Google’s advertising network for a substantial portion of their revenue streams cannot afford to oppose Google on net neutrality.

That’s why Pai’s speech took so much courage. Both the mainstream media and the world’s richest corporations will be against him.

Americans who believe in free speech, freedom of the press, and fair competition cannot let him stand alone. Pai is internet freedom’s David. At this hour, we must stand by Pai.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Tech Knowledge filed the following comments in support of the petitions for reconsideration of the FCC’s broadband privacy rules (WC Docket No. 16-106).

Comments in Support of Petitions for Reconsideration

These comments illustrate the following points:

Google’s decision to combine its users’ personally-identifiable information with the vast browsing data of its advertising subsidiary, DoubleClick, which accesses consumer data on 75.3% of all websites that use an ad server — a decision Google made after the submission of edge-provider data on which the FCC relied — renders the FCC’s finding inaccurate with respect to the percentage of web information Google can access.

The FCC’s findings regarding encryption failed to consider consumers’ use of encrypted virtual private networks (VPNs) that are available at low cost and even for free. At a minimum, the FCC must explain why it’s necessary to impose unique privacy rules on ISPs when a solution is already widely-available in the marketplace at little or no cost.

The FCC’s failure to consider the fact that its factual findings regarding edge providers directly contradict the factual findings made by the FTC — the federal agency who is the nation’s expert on edge provider regulation — constitutes arbitrary agency action as a matter of law.

The FCC’s failure to consider arguments regarding the impact of its rules on competition among ISPs and edge providers in the online advertising and big data markets constitutes arbitrary agency action as a matter of law.

Privacy is a personal right, and it’s reasonable for consumers to assume the law will protect their person from one network to another — but the FCC’s rules do not provide such protection.

There is no legal barrier whatsoever to the FCC treating section 222 of the Communications Act as if it were coextensive with the FTC’s approach to privacy.

It appears Wheeler didn’t get the memo from the Federal Bureau of Investigation (FBI) and other law enforcement agencies about the law governing privacy and ownership of communications addressing and routing volumes. According to a line of federal court cases dating back to the nineteenth century, users of communications networks don’t have a “justifiable,” “reasonable,” or even a “legitimate expectation of privacy” in that type of data. In fact, it’s not “your” data.

Consumers may have an expectation of privacy in the content of their communications, but that expectation doesn’t reasonably extend to the addresses or volumes of their communications. The federal courts have held that consumers don’t have a legitimate expectation of privacy in the addresses they write on sealed letters and packages sent through the U.S. mail or their weight, the numbers they dial on their telephones or the number of calls they make, or the to/from addresses of their email messages and IP addresses of the websites they visit or the volume of the data transmitted. The Supreme Court has held that an expectation that this type of information should be private “is not one that society is prepared to recognize as ‘reasonable.’” Read More

Half measures aren’t enough to protect consumer privacy. Sadly, the FCC’s privacy proposal is a half-measure that applies to a limited set of Internet companies that collect a subset of consumer information.

Private consumer information is like any other secret. Even if you only tell a few friends you think you can trust, your secret will likely spread. And the Internet companies the FCC refuses to hold accountable for your privacy — like Google — aren’t your friends. They’re in the business of selling your secrets — secrets so valuable that Google is now the largest company the world has ever known. Yet the FCC plans to exempt Google and the Internet’s other biggest secret-sellers from its new privacy rules. It’s the equivalent of adopting a nuclear weapons ban that applies to everyone except the United States and Russia — the world’s biggest nuclear powers — and claiming the ban will keep the world safe from nuclear attack.

If the FCC were being honest, it would acknowledge that its plan is too limited to protect your Internet privacy in any meaningful way. But the plan could play a meaningful role in cementing Google’s monopoly market power in the secret-selling business by regulating its potential competitors out of that business altogether.

Which begs an important question: When did the FCC decide that Google’s interests and the public interest are the same thing?

Yesterday I gave a keynote speech about data privacy at a colloquium held by the Dialogue on Diversity. The speech as prepared for delivery is pasted below.

When Julius Caesar crossed the Rubicon, he irrevocably committed himself to waging a civil war against the Roman Republic. Caesar believed war was his only viable option. The Senate had ordered him to disband his army and return to Rome alone, where he expected to be prosecuted for insubordination and treason. Faced with this as his alternative, he crossed the river saying, “Alea iacta est” — the die is cast.

When it comes to data privacy relating to the tracking and use of consumer information for advertising, the Internet economy crossed the Rubicon long ago. Consumer data is the primary driver of the Internet economy today. According to a study commissioned by the Interactive Advertising Bureau with researchers from the Harvard Business School, at least half of the Internet’s economic value is based on the collection of individual user data and nearly all commercial content on the Internet relies on advertising to some extent. To put things in perspective, the market for digital advertising is now larger than the market for broadcast television advertising, and digital advertising is still growing. A diminished expectation for privacy is the price for accessing search, social networks, maps, email, and other online services without monetary payment. Read More

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I’ve previously explained how the theory of ‘gatekeeper control’ underlying the FCC’s 2010 approach to net neutrality is applicable to any Internet intermediary that is capable of blocking, degrading, or favoring particular Internet services, applications, or content — a category of ‘non-ISP gatekeepers’ that includes the mobile operating systems offered by Apple and Google. The FCC has nevertheless focused its net neutrality efforts entirely on ISPs.

The result of the FCC’s myopic regulatory strategy: Google has engaged in precisely the type of behavior that net neutrality was intended to prevent in order to cement its control over the Android operating system and mobile search. Read More

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This is the second post in a series addressing fundamental questions presented by the prospect of applying per senet neutrality rules under Title II. The first post is available HERE.

The first post in this series concluded that the logic of the gatekeeper theory the FCC used to justify the imposition of per senet neutrality rules extends to any Internet intermediary that is capable of blocking, degrading, or favoring particular Internet services, applications, or content. This post presents a brief analysis of some intermediary services to which the gatekeeper theory would apply if the FCC relies on it to impose per senet neutrality rules under Title II.

The analysis demonstrates that Internet companies must also ‘ask permission’ to pass gates erected by Google, Apple, and Netflix (non-ISP gatekeepers) in order to obtain access to end users:

These non-ISP gatekeepers routinely use their gatekeeper control to block, degrade, or discriminate against upstream edge providers (far edge providers);

End users may incur significant costs in switching from one non-ISP gatekeeper to another; and

These non-ISP gatekeepers provide services in market segments that are highly concentrated.

It would thus be arbitrary and capricious for the FCC to impose per senet neutrality obligations only on ISPs under Title II.

To be clear, I’m not suggesting that reclassification of broadband Internet access services as ‘telecommunications services’ under Title II is necessary or that the FCC should otherwise regulate non-ISP gatekeepers. The analysis in the post is intended to illustrate that the FCC’s theory of gatekeeper control is radically over-broad under Title II and inconsistent with the competition theory of communications regulation set forth by Congress in the Communications Act. Read More